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Western District of Texas Court Summaries
FEDERAL COURT UPDATE
By Soledad Valenciano, Melanie Fry, and Jeffrie Lewis
If you are aware of a Western District of Texas order that you believe would be of interest to the local bar and should be summarized in this column, please contact Soledad Valenciano (svalenciano@svtxlaw.com, 210–787–4654) or Melanie Fry (mfry@dykema.com, 210–554–5500) with the style and cause number of the case, and the entry date and docket number of the order.
Summary Judgment
Kier v. Wal-Mart Stores Tex., LLC, SA-23CV-00991 (Pulliam, J. – August 20, 2024)
Wal-Mart filed a motion for summary judgment on patron’s premises liability claim based on a patron’s allegation that she slipped on a green substance. The court denied the motion, holding Wal-Mart could not rely on the patron’s knowledge of how long the substance was on the floor to show Wal-Mart’s actual or constructive knowledge. Further, the court disagreed that the patron’s deposition testimony established that the green substance was “open and obvious” such that Wal-Mart had no duty to warn of its presence. The patron’s testimony simply confirmed that the store was well lit and that had she been looking at the floor when walking she could have seen the substance. What the patron knew or should have known is not the test to determine whether a condition objectively created a danger that was open and obvious as a matter of law; rather, the court needed evidence to assist it in determining whether the subject danger presented by a condition would have been apparent or appreciable to an ordinary, reasonably prudent person.
Motion to Dismiss
Clower v. Winnebago Indus., Inc., SA-24CV-00406 (Biery, F. – August 30, 2024).
Although Local Rule CV-7(d)(2) allows a court to grant motions as unopposed if no response is filed, a court may not grant a motion to dismiss solely on a failure to respond. Accordingly, despite a lack of response, the court considered the defendant’s motion to dismiss for forum non conveniens on its merits. The warranty forming the basis of the plaintiffs’ claims contained a forum selection clause. The court concluded that the clause was mandatory and that the presumption favoring enforcement of such clause was not so unusual or against public policy for the court to retain the case. The court granted the motion to dismiss without prejudice.
Attorneys’ Fees; Costs Under 42
Johnson v. Callanen, SA-22-CV-00409-XR (Rodriguez, X. – August 27, 2024).
The plaintiffs sued an elections administrator and Bexar County, and after considering competing motions for summary judgment, the court issued a permanent injunction requiring, among other things, that the County provide an electronic remote accessible vote-by-mail system (the “RAVBM”) for blind and visually impaired voters. The plaintiffs requested reconsideration of the court’s order granting some, but not all, of their attorneys’ fees and expenses, alleging manifest error. The court agreed that it failed to consider the availability of costs under 42 U.S.C. § 12205 and thus considered whether plaintiffs’ postage, legal research expenses, PACER fees, and travel expenses are necessary litigation expenses. The court then awarded $2,896.98 in travel expenses, as those expenses were incurred for court appearances, and denied all other claims for reimbursement, finding the plaintiffs failed to demonstrate why those costs were necessary. The plaintiffs also claimed the court erred in failing to consider their attorneys’ years of experience. The court applied a median hourly rate which accounts for varying years of experience, and further, the plaintiffs failed to demonstrate the reasonableness of the rate they sought. Finally, the court rejected the argument that it was improper to reduce the attorneys’ fees awarded by 1/3 under an “ultimate impact” rationale (as the RAVBM was only used once), reasoning the Johnson factors are a non-exhaustive list of considerations by which a court may determine whether a fee award is reasonable.
Motion for Leave to Amend; FRCP 16(b)(4)
Pruneda v. Bexar Cty., No. SA-22CV-00104 (Bemporad. H – July 29, 2024) (adopted by Pulliam, J. – August 23, 2024).
In this 2022 class action suit, the court considered the plaintiffs’ Partial Motion for Judgment on the Pleadings, or, in the alternative, Motion for Partial Summary Judgment as to Liability (“Partial Motion for Judgment”) and the defendant’s Motion for Leave to Amend (“Amendment Motion”). Rather than answering the suit, the defendant had filed a motion to compel arbitration, which was denied. The parties proceeded to litigate until January 2024, when the plaintiffs filed their Partial Motion for Judgment, pointing out that the defendant had never filed an answer. The defendant both responded to the motion and filed a motion for leave to file an answer. The court originally granted the motion in part to allow the defendant to answer the plaintiffs’ claim and held in abeyance the defendant’s request to add new affirmative defenses. Later, the defendant, now represented by new counsel, filed the Amendment Motion, seeking to raise affirmative defenses. Because the Amendment Motion was filed after the deadline in the scheduling order for seeking to amend pleadings, the question of whether to permit amendment was governed by FRCP 16. Analysis of whether a party has met the Rule 16 “good cause” standard involves wholistic consideration of: (1) the explanation for the failure to meet the deadline; (2) the importance of the modification to the broader litigation; (3) potential prejudice to the nonmovant; and (4) whether a continuance would cure any such prejudice. The court separated the defenses in the defendant’s proposed amended answer into three categories: (1) exemption defenses, (2) defenses not addressed in the Amendment Motion; and (3) remaining defenses (good faith; limitations; credit/set off; limitations/release as to certain opt-in plaintiffs). As to the exemption defenses, the defendant’s former counsel’s failure to answer due to inadvertence coupled with its current counsel’s unawareness thereof resulted in the first—and most important—factor weighing heavily against the defendant. Noting that modifications such as the proposed exemption defenses may have a dispositive impact on liability, the court considered such modification important to the broader litigation. Third, allowing amendment would prejudice the plaintiffs by essentially restarting the action. Finally, although a continuance would allow the plaintiffs to address the newly raised defenses allowing the untimely amendment would incurably cost the plaintiffs delay and additional expense, and would risk promoting “dilatory litigation tactics[,]” especially when the defendant filed its original answer two years late, and failed to seek an extension of the pleading deadline. The court concluded that because this two-year delay was a result of inadvertence and not of circumstances beyond the defendant’s control, the defendant failed to show good cause to grant leave to amend. The court denied the Amendment Motion to the extent the defendant sought to add defenses not addressed in the Amendment Motion. As to all other defenses, while the first factor weighed against the defendant’s inclusion of good faith and limitations defenses, the other three factors weighed in its favor, as “the prejudice to Plaintiffs is greatly lessened; and there is no obvious need for a continuance to address the question at trial, since Plaintiffs will already be seeking to show a willful, non-good-faith violation to the jury.” The plaintiffs had failed to address the defendant’s remaining defenses in its objection to the Amendment Motion. The court granted the defendant leave to amend its answer to include all but the exemption defenses. Allowing the amendment partially mooted and partially warranted denial without prejudice of the plaintiffs’ Partial Motion for Judgment as that motion had relied on the lack of answer and affirmative defenses.
Motion to Dismiss; FRCP 12(b)(6); Fraud; FRCP 9(b)
Clouse v. Success Sys., LLC, No. SA-23CV-01380 (Bemporad. H – August 6, 2024) (adopted Garcia, O. – August 27, 2024)
A consumer, sued a credit repair organization under the CROA and the TCSOA based on the organization’s failure to improve the plaintiff’s credit score as promised, and subsequent failure to refund the several hundred dollars the plaintiff had paid for the defendant’s services. The defendant moved to dismiss parts of the plaintiff’s claims under each count under FRCP 12(b)(6), alleging that said parts sound in fraud yet were not pled with the particularity required by FRCP 9(b). Noting that Rule 9(b) is applicable to “all averments of fraud,” regardless of whether the averments are part of or necessary to state a claim, the court first determined that the plaintiff’s statutory claims sounded in fraud. Specifically, the court concluded that CROA §§ 1679b(a)(3) and 1679b(a)(4), as well as TCSOA §§ 393.304(1) and 393.305, all sound in fraud. The court then considered whether the plaintiff’s pleadings met the FRCP 9(b) particularity standard. The court held that for the most part, the plaintiff had complied with Rule 9(b) but failed to meet that particularity standard as to one detail: the identity of the agent for the defendant alleged to have made the fraudulent statements upon which the plaintiff relied. The court thus denied in part and granted in part the motion to dismiss, allowing the plaintiff to amend to add the identity of the agent.
